O'Rear v. Lamb , 194 Ga. 455 ( 1942 )

1. Though the portion of a petition seeking the equitable relief of specific performance of a contract set out therein is stricken on demurrer, and the case proceeds to trial only on the portion of the petition seeking a money judgment, the case continues to be one in equity reviewable by the Supreme Court, where the plaintiff has properly excepted to the judgment on demurrer and by cross-bill seeks a review of that judgment. In such a case the rule that where, by agreement or by judgment unexcepted to, all equitable features have been stricken, the case becomes one at law, does not apply.

2,7. An exception to a finding of an auditor in an equity case, sustaining an objection to testimony, which gives the name of the witness and sets out in full the testimony excluded, but fails to state the objection which was sustained, is incomplete. In the instant case the judge did not err in overruling such an exception.

3. An exception of law or fact to the report of an auditor that requires consideration of evidence must either embody the necessary evidence or attach the same as an exhibit. To give names of witnesses and set forth pages of the auditor's brief of the evidence where such testimony may be found will not suffice. And where the exception asserts that in making the finding the auditor accepted the books and testimony of the plaintiff instead of the testimony of the defendant, it admits that there was evidence to support the finding; and therefore the judge did not err in disallowing the exception. Such exception was properly disallowed for the further reason that it states that certain books were considered in making the finding, but fails to set forth in any manner the contents of such books.

4. An exception of law to the auditor's report, which states that certain evidence must be considered in passing upon the exception, but neither embodies the necessary evidence, attaches it as an exhibit, nor describes it in a manner sufficient to identify it in the remotest degree, is insufficient to present any question to the court.

5. Where it is sought to obtain a decree of specific performance of a clause of a contract relating to a conveyance of land, and the same contract contains another clause providing for sale of live stock, but fails to describe such live stock, and is also indefinite as to the date and amounts to be paid thereunder, the contract is void for indefiniteness; and it was not error to sustain a demurrer to the portion of the petition setting forth the contract and seeking specific performance of the clause thereof.

6. Though the plea and answer contains much irrelevant matter, it does allege payment of the claim sued upon, as well as payments in excess thereof, and thus was sufficient to withstand the plaintiff's demurrer.

8. Where the auditor makes an alternative finding in the event his previous ruling is reversed, and the previous ruling is affirmed, the alternative finding never becomes of force, and exceptions of law and fact to such alternative ruling present nothing for decision.

Nos. 14254, 14255. SEPTEMBER 15, 1942. The petition of H. Lamb against E. C. O'Rear, Jessie Mae O'Rear, and Emily O'Rear, in paragraphs 2 to 8 inclusive, as amended, alleged, in substance, that on January 10, 1920, E. C. O'Rear executed and delivered to petitioner a promissory note for $6500, bearing interest at eight per cent. per annum and due $1500 on or before November 1, 1920, 1921, and 1922, respectively, and $2000 on or before November 1, 1923; that after allowing all credits thereon, there was due on March 29, 1929, an amount in excess of $2000; that the note was secured by a deed to a tract of land in Hancock County, containing 330 acres, more or less; that on March 29, 1929, E. C. O'Rear gave to plaintiff his promissory note for $2000, bearing interest at six per cent. per annum from March 1, 1930, and providing for ten per cent. attorney's fees; that on the same date the plaintiff executed and delivered to O'Rear a bond for title, obligating the plaintiff to convey the land therein described upon the payment of the $2000 note and another note of $1109.15 which was executed by E. C. O'Rear and delivered to petitioner on the same date, and to secure the two notes E. C. O'Rear executed and delivered to plaintiff a bill of sale to live stock and personal property; that the indebtedness now due to the plaintiff by E. C. O'Rear on what is known as the Gum Hill Place, and including the $2000 note referred to, amounts to $2186.15 principal and $1427.75 interest; that E. C. O'Rear is further indebted to plaintiff on what is known as the dairy account, including the $1109.15 note above referred to, in the amounts of $1833.64 principal and $1307.09 interest. In the remaining paragraphs of the original petition, 9 to 14 inclusive, as amended, the plaintiff set forth in paragraph 9 an alleged contract dated March 31, 1938, between the plaintiff and the defendants, which is as follows:

"Agreement entered into this day between E. C., Jessie Mae, and Emily O'Rear on the one side and H. Lamb on the other:

"It seems that sundry cattle, mules (possibly) and hogs, together with $158.27 paid on a refrigerator, and a cream separator, for which Lamb was given a bill of sale, are now being used by said E. C. O'Rear. Lamb herewith agrees to give Jessie Mae and Emily O'Rear a bill of sale for all title that he has upon the above, on payment by them of $500.00 with interest at 8% per annum, payments to be begun partially now, and the full $50.00 per month to be paid when $75.00 for life insurance, and $100.00 representing a bill of sale for some cattle now being held by Bank of Union Point, is paid.

"The above does not cover two mules from Gum Hill that E. C. O'Rear agrees to feed for their use until Lamb is able to dispose of them. Neither does it include $276.00 paid by Lamb for a carload of hulls and five tons of meal in January, which E. C. O'Rear agrees to liquidate by paying over to Lamb 50% of all of his milk checks. The account now at Bank of Union Point has a credit of $87.00, which deducted from the $276.00 would make $189.00, on which these payments are to apply.

"E. C. O'Rear states that no farm implements were obtained from the Gum Hill place, except a broken-down wagon of no value and a plow-stock worth about 50 ¢. And with that understanding, E. C. O'Rear has turned over to Lamb the Gum Hill place, neither having any claim against the other. E. C. O'Rear, however, agrees to sign any necessary paper, and this likewise applies to Mrs. E. C. O'Rear, in the event it is necessary to put Lamb in possession of the Gum Hill property.

"This $500.00 when paid by Jessie Mae and Emily O'Rear, together with the other amounts mentioned above, will entitle them to the bill of sale by Lamb. E. C. O'Rear is to make out a full list of all of the items on which he now has a claim, so that at the proper time they will be included in the bill of sale."

Based upon this contract, subsequent paragraphs of the petition alleged, that the defendants Jessie Mae and Emily O'Rear agreed to satisfy plaintiff's dairy account against E. C. O'Rear by paying $500, and petitioner in consideration of such payment was obligated to release to them the live stock and personal property described in the bill of sale executed by E. C. O'Rear on March 29, 1929; that the defendants have not paid said $500 or any part thereof, and it is past due; that upon the agreement set out in paragraph 9 E. C. O'Rear is indebted to petitioner in the sum of $104.40 besides interest, which is past due and unpaid; that by virtue of the contract set out in paragraph 9 E. C. O'Rear is obligated to execute necessary papers to put plaintiff in possession of the Gum Hill property, and that it is necessary for this purpose for him to convey to petitioner all of his rights, title, equity, and interest in said property by warranty deed, but this E. C. O'Rear has failed and refused to do; that the plaintiff is ready, willing, and able to perform his obligations to the defendants under the contract set out in paragraph 9; and that damages for a breach of the contract on the part of E. C. O'Rear which petitioner might recover at law would be inadequate to compensate petitioner for the injury he would thereby sustain. By amendments the plaintiff set out a specific and definite description of the land referred to in original paragraph 9 as the Gum Hill place, and also gave a long list of the live stock referred to in the contract. The petitioner further amended by setting out itemized statements of various accounts between the parties. The petition prayed, for judgment in the amounts alleged by the petition to be due the plaintiff; for specific performance on the part of E. C. O'Rear of his obligation, under the contract set out in paragraph 9, to convey to plaintiff the Gum Hill property; and for general relief.

To the petition as amended the defendants filed demurrers. The auditor to whom the case was referred by the court, with authority to decide all questions of law and fact, sustained the demurrer to paragraphs 9 to 14, inclusive, as amended, and overruled the demurrer to paragraphs 2 to 8, inclusive, as amended. The defendants filed an answer which was several times amended, the substance of the amended answer being that defendants admitted the execution of all of the notes and contracts alleged in the amended petition, but denied liability to the plaintiff in any amount and claimed an indebtedness upon the part of the plaintiff to the defendants. The answer set forth various alleged payments with proceeds from the sales of land, of timber, of cotton, of milk, aggregating more than the amount sued for by the plaintiff. To the answer as amended the plaintiff demurred, which demurrer was by the auditor overruled.

After a hearing, the auditor made his report, which set forth various rulings upon pleadings and upon the admissibility of evidence, and in finding 27 the auditor ruled in favor of the plaintiff and against the defendant E. C. O'Rear (1) on the purchase-money note dated March 29, 1929, principal $2000, interest $1392, attorney's fees $339.20; (2) on bill of sale dated March 29, 1929, principal $1109.15, interest $1110.86, attorney's fees $222; (3) on what is known as Gum Hill account, $121.57; (4) on dairy account, $835.28; (5) deposit in Bank of Union Point, joint account of plaintiff and defendant, $171.60, and balance due on meal and hulls account, $104.40 principal and $25.55 interest; and (6) that the judgments set out in paragraphs (1) and (2) are special and paramount liens against the Gum Hill property and property described in a bill of sale recorded in book A-19, pp. 47-48, clerk's office, Greene County Superior Court.

To the auditor's report the defendant filed exceptions. The exceptions, while containing numbers 1 to 12, inclusive, are not clear and do not appear to constitute twelve exceptions. The first exception is an exception of law to the auditor's ruling in paragraph 9 of his report, overruling defendant's demurrer filed October 16, 1941. The next exception is one of law to paragraph 13 of the auditor's report sustaining the objection of plaintiff's counsel to quoted testimony of the defendant E. C. O'Rear, relating a conversation between himself and the plaintiff, and asserting that "said ruling was error, because the defendant had a right to testify to any conversation he had with plaintiff, relative to his claim in dispute between them;" and it is further asserted that there was a written contract between the parties for the defendant to pay to the plaintiff twenty per cent. of his milk checks, and plaintiff denied it, and that he paid these checks monthly, but plaintiff gave him no credit for them. This exception is numbered 2, and without further numbering, but under No. 2 it is stated that "Defendants further except, as a matter of fact, to the findings of the auditor as set forth in paragraph 27 and subparagraphs 1, 2, 3, 4, 5, and 6 thereof, in which he finds in favor of plaintiff the sums therein set forth, upon the following grounds, to wit:" Then follows a statement that the evidence adduced upon the hearing before the auditor and attached to and made a part of the auditor's report "shows:" Then follow portions of exceptions numbered 3, 4, and 5, in which it is asserted that there existed between plaintiff and defendant a relationship of trust and confidence; that plaintiff took over the financial end of defendant's business, consisting of farming and dairying; that plaintiff stated to defendant that it would be unnecessary for the defendant to keep records, because plaintiff had employees who were expert auditors and bookkeepers; that because of this, the defendant kept no records, made no investigation of their accounts, and relied solely upon the plaintiff; that plaintiff breached the trust and failed to keep true books, but kept a set of books that would enable him at any time to construe the entries therein in his favor; that the entries were vague, equivocal, and contradictory; that the plaintiff's testimony with regard to these items was also vague, equivocal, and contradictory; that the auditor, instead of construing the plaintiff's testimony and books against him, construed them in plaintiff's favor and rendered the judgment excepted to; that the books and testimony of plaintiff show concealment that amounts to legal fraud, in failing to make a full and clear disclosure of the money and transactions actually handled during the period of more than ten years; and that "the record shows that the auditor accepted the testimony and the book entries of the said Lamb, and discarded the testimony of the said O'Rear." By an amendment allowed by the judge, paragraph 5 of the exceptions was amended by setting forth excerpts of testimony of plaintiff and defendant. Then, numbered 7, the defendant excepts as a matter of law to the rulings of the auditor set forth in paragraph 27 and subsections 1 to 6, inclusive, asserting that said findings and rulings are error under all the circumstances and relations of the parties, and all the evidence, direct, circumstantial, presumptive, and moral, and with due consideration and application of the law that would apply and control the facts. Under this exception it is stated that it is necessary to have "all the evidence produced from both sides of the case, and every fact and circumstance involved in the transaction of the plaintiff and defendant." This ground refers to a brief of the evidence filed by the auditor, and asserts that exceptors point out parts of the brief necessary for the decision of the question involved in this exception of fact. Then follows: "Mrs. E. C. O'Rear's testimony in brief 166-170 inc." Then a new paragraph 8 follows, wherein it is stated: "The oral testimony of H. Lamb from page 3 to 11 inc., auditor's brief. Oral testimony of E. C. O'Rear from pages 11 to 22, 52-72, 78-105, 132-137, 145-155, 161-165, inc., auditor's brief. Oral testimony of H. Lamb from pages 42-49, 111-123, 139-142, 156-165, inc., auditor's brief." This paragraph also contains the names of a number of other witnesses, and gives the pages of the auditor's report where their testimony may be found. Then in paragraph 9 reference is made to three small account books, marked respectively in the back thereof, "Book A," "Book B," and "Book C," and a long list of pages in these three books is set forth, immediately following which appears the following: "20 small packages letters, notes, memoranda written from Lamb to O'Rear, and from O'Rear to Lamb, during the years 1920 to 1940, each package respectively tagged with a blue slip of paper showing the year in which those letters were written, or memoranda made, etc. The O'Rear bankruptcy record proceedings offered by plaintiff. 1 package of document, papers involved in the case as the original note of $6500, package marked Documentary, also introduced by plaintiff." Followed by the statement "Affidavits agreed on as follows." Then a number of persons are listed, but no affidavit is shown. It is asserted that said findings are contrary to evidence and without evidence to support them, are strongly against the weight of evidence, and are contrary to principles of law and principles of justice and equity.

Paragraphs numbered 10, 11 and 12 of the exceptions assert that the auditor failed to consider the great lapse of time after maturity of the documents sued upon; that the auditor should have considered this lapse of time and other circumstances in deciding the defendant's plea of payment; that defendant's evidence showed that there was no consideration for the $2000 note, and that plaintiff's evidence relating thereto is vague, equivocal, and self-contradictory; that the auditor ignored the relationship of trust and confidence existing between the parties; that when all the circumstances of the case are considered with the relationship of trust and confidence existing, a finding in favor of the plaintiff is contrary to evidence and without evidence to support it. By an amendment allowed by the judge subject to objection, paragraphs 10, 11, and 12 were amended by reiterating arguments originally made against the finding of the auditor, and asserting that the $2000 note was without consideration and given for the purpose of preventing creditors of O'Rear at the time of his bankruptcy from getting plaintiff and defendant in trouble, and excerpts of the testimony of plaintiff are set forth. The judge disallowed the defendant's exceptions, and made the findings of the auditor the judgment of the court; and the defendant excepted.

The plaintiff filed exceptions of law and one exception of fact to the auditor's report. His exceptions of law 1 and 2 are to the ruling of the auditor sustaining defendant's demurrer to paragraph 9 and subsequent paragraphs of the petition as amended, all based upon the contract set out in paragraph 9. Exception No. 3 is to paragraph 3 of the auditor's report overruling plaintiff's demurrer to defendants' amended answer. Exception No. 4 is to the auditor's finding No. 21, overruling an objection to quoted evidence of the defendant E. C. O'Rear, the exception stating that the evidence was immaterial to any issue involved in the case, and that the objection should have been sustained, and that the overruling of the same was contrary to law. What the objection to the evidence was does not appear in the exception. Exception No. 5 is to the auditor's finding No. 26, which is an alternative finding to the effect that if the ruling sustaining the demurrer to paragraph 9 and subsequent paragraphs of the petition is reversed, then he finds that the contract set out therein was later rescinded and is not binding upon the defendant. The one exception of fact is to this same finding No. 26 of the auditor. The plaintiff's exceptions of law and fact were overruled and disallowed, and to that ruling the plaintiff excepted by cross-bill. 1. Whether or not the prayer of the defendants for an accounting, where, as here, the pleadings show an involved and confused course of dealings over a period of twenty years, would under the Code, § 37-301, give equity jurisdiction in this case (see Wilson v. Granger, 134 Ga. 680,68 S.E. 514; Wimpee v. Burt, 148 Ga. 418 (2), 96 S.E. 993), the allegations of the amended petition and the prayer for specific performance make this case one in equity. Code, § 37-801. The judgment on demurrer, striking those portions of the amended petition containing and dependent upon the contract set forth in paragraph 9, which the petition seeks to have specifically performed, did not have the effect of finally taking this equitable feature of the case out of the petition and thereby leaving only a case at law, that judgment having been timely and properly excepted to pendente lite and now brought under review in this court by the cross-bill of exceptions. The rule that where equity has been eliminated by voluntary action of the parties, or by a judgment unexcepted to, the case ceases to be one in equity, as held in Brightwell v. OglethorpeTelephone Co., 176 Ga. 65 (166 S.E. 646), Mills Lumber Co. v. Milam, 184 Ga. 455 (192 S.E. 35), Frigidice Co. v.Southeastern Fair Association, 186 Ga. 263 (197 S.E. 804),Davis v. Berry Schools, 187 Ga. 131 (199 S.E. 808), andBartlett v. Walker, 189 Ga. 154 (5 S.E.2d 373), has no application in the present case, since the judgment relied upon is excepted to. See Harrell v. Parker,186 Ga. 760 (198 S.E. 776); Mitchell v. Turner, 190 Ga. 485 (2) (9 S.E.2d 621). The allegations of the petition and the prayer for specific performance based thereon make the action one in equity.

2. The defendant's exception of law No. 2 complains of the finding of the auditor No. 13, sustaining an objection to testimony of defendant E. C. O'Rear relating to an alleged contract between the witness and the plaintiff, the testimony excluded being set out in full, but the grounds upon which the testimony was excluded not being set forth in the exception. To properly except to a ruling admitting or excluding evidence, the exception must state what objection to the evidence was made and urged at the time it was offered. Woodbridge v. Drought,118 Ga. 671 (5) (45 S.E. 266); Bennett v. Farmers MerchantsBank, 124 Ga. 223 (5 S.E. 330); Adkins v. State,137 Ga. 81 (4, 5) (72 S.E. 897). This exception was incomplete, and the judge did not err in disallowing it.

3. The next exception, stating that it is an exception of fact, is to paragraph 27 and its six subdivisions of the auditor's report, finding in favor of the plaintiff and against the defendant for stated sums. The judge did not err in disallowing this exception, for two reasons, either of which would be sufficient to sustain the ruling. First, it is stated in the exception that the auditor's finding was based upon the book records and testimony of the plaintiff, while it is contended that it should have been based upon the defendant's testimony. Thus the exception shows that the finding is supported by evidence, in which case the judge in the exercise of his discretion may disallow the exception. In the second place, while by amendment allowed by the judge over objection of the plaintiff the exception sets out considerable testimony which it is asserted relates to the question made by this exception, the exception shows that books and records were in evidence, and no attempt was made to set forth the content of such records relating to the question here made. An exception to the report of an auditor in an equity case must specify the error and set forth such parts of the record as will make it complete within itself, so that it may be passed upon without resort to other records. It must meet in this respect the same degree of definiteness and completeness that is required of a special ground of a motion for a new trial. And in the hope of avoiding any future misconception, we here reassert what was said in Fugua v. Hadden, 192 Ga. 654 (16 S.E.2d 728), that, despite obiter dicta statements found in earlier decisions to that effect, it is not and has never been the law that the requirement of setting forth the evidence necessary for a decision on an exception may be satisfied by giving the names of the witnesses and specifying the pages of the brief of evidence where their testimony may be found. Such evidence must be embodied in the exception or attached thereto as an exhibit.Hudson v. Hudson, 119 Ga. 637 (46 S.E. 874); Baxter v.Camp, 126 Ga. 354 (54 S.E. 1036); Armstrong v. AmericanNational Bank, 149 Ga. 165 (99 S.E. 884); Faucett v.Rogers, 152 Ga. 168 (108 S.E. 798).

4. The last exception is termed an exception of law to finding 27 and subdivisions 1 to 6 thereof, inclusive. This exception does not meet the legal requirements. Indeed it is too complicated, confusing, and uncertain to present any question of law. It would be an unjustifiable consumption of space to set out here the numerous incomplete, indefinite, and insufficient specifications of evidence which the exception asserts is necessary for a decision on the exception. A fairly complete statement of such specifications is set forth in the statement of facts preceding this opinion. Illustrative of the non-observance of the rules in such matters is the portion of this exception which specifies a number of books and lists a great number of pages of those books, without giving any indication of the contents of such books. It refers to twenty packages of letters written by the parties over a period of twenty years, but gives no indication of their contents. It refers to bankruptcy proceedings, without giving any of the substance thereof. It also states that affidavits of a number of persons whose names are set forth must be considered, but makes no attempt to set forth or otherwise furnish the substance of such affidavits. No court could possibly render a decision on the merits of this exception. The judge had no choice under the law but to overrule the exception. Accordingly it was not error to overrule this exception and enter final judgment in accord with the auditor's report.

5. The defendant by cross-bill excepts to the judgment disallowing and overruling his exceptions of law and exception of fact. The contract set out in full and made a part of paragraph 9 of plaintiff's petition is too indefinite to be specifically performed. The personal property is not described, and the method of payment, including the amount to be paid, is too indefinite and uncertain to constitute a valid obligation. Without a further analysis of the other terms of the contract, the invalidity of this portion of the contract renders the entire contract void and unenforceable, and a court of equity would not be authorized to decree specific performance thereof. Trust Company of Georgia v. Neal, 161 Ga. 965 (132 S.E. 385). It follows that paragraph 9 of the petition containing this contract and the subsequent paragraphs of the petition as finally amended stated no ground for specific performance; and accordingly the judgment sustaining the demurrer thereto was not error. This ruling controls, adversely to the plaintiff in error in the cross-bill of exceptions, grounds 1 and 2 of his exceptions of law to the auditor's report. It also renders unnecessary a ruling on exception of fact No. 1 of the plaintiff in the main bill, complaining of the auditor's overruling of the defendant's demurrer to a portion of the plaintiff's amendment to this part of the petition.

6. The third exception of law in the cross-bill is to the auditor's finding overruling the plaintiff's demurrer to the defendant's answer as amended. While the amended answer comprises many pages and contains much immaterial matter, it is sufficient to constitute a plea of payment of plaintiff's demands, and hence is sufficient to withstand the demurrer. The court did not err in overruling this exception of law.

7. The fourth exception of law complains of the auditor's finding of law No. 21, overruling an objection to the evidence of the defendant E. C. O'Rear. The evidence is set out in full in this exception, and it is asserted therein that the evidence was immaterial to any issue involved in the case, and that the overruling of the plaintiff's objection was contrary to law. What objection or the ground of objection urged at the time does not appear, and under the ruling in division 2 this is a fatal defect. The judge did not err in overruling this exception.

8. Both the exception of law No. 5 and the exception of fact complain of the alternative finding of the auditor, to the effect that if the auditor's ruling sustaining the demurrer to the portion of the petition based upon the contract set out in paragraph 9 is reversed, then the auditor finds that the contract was later rescinded and was not binding upon the defendant. Neither of these exceptions requires a ruling, since the judgment on the demurrer is affirmed; and hence this finding has never become of force.

Judgment affirmed on both the main bill and the cross-bill ofexceptions. All the Justices concur.